Jan21

How to Prove You’re Innocent

How_to_Prove_youre_innocent

When it comes to Immediate Roadside Driving Prohibitions it can be impossible to prove you’re innocent. Although the case law says that the burden of proving the allegation is the job of the police, the Government continues to contest this, claiming it’s an undecided legal issue every time they get to court. And in actual practice at the hearings before the OSMV tribunal you must prove your innocence.

It’s a sad state of affairs, but that’s simply the way it in in BC right now, and we think that things will only get worse in the decades to come. Mostly it’s sad for people who are issued IRPs and who are innocent and can’t prove it. It’s sad for the rest of us because this undermines the foundations of our justice system.  And it will become even worse for the rest of us as this becomes the new standard.

With the IRP scheme the police and the OSMV have decided what disclosure you may have. If there is further disclosure that may demonstrate that you are innocent, they won’t give it to you. If you eventually could obtain it through an FOI request or some other means, chances are that you’ve already served the punishment (lost your job, house or what have you) and, by virtue of the fact that the Government has financially destroyed you, you can’t fight on in any event.

One thing that really bothers us is that the evidence of the police is almost always preferred over the evidence of the applicant in IRP hearings. It’s clear to us that the police are using stock evidence – often the same police report from file to file. Still, the OSMV tribunal, which sees all the evidence from all of the police officers, seems to just go along with the police. The police evidence is generally not subject to any serious scrutiny. By the time people appeal the OSMV review decision to BC Supreme Court, the fact that the evidence is cut-and-paste is lost because the court only deals with a handful of reviews. Why is that? Reread the previous paragraph.

But hey, this is BC where fairness sometimes doesn’t seem to matter. But lets talk about some of the things that we’re doing to help prove that some people are innocent.

Trying to find ways to prove you’re innocent:

We’re not just smart – we’re competitive. And we want to continue to be the best IRP DUI lawyers in BC (as the stats demonstrate) so to that end we’re always trying to find ways to prove you’re innocent.

We have obtained thousands of records concerning ASD roadside breathalyzers in BC, and hundreds and hundreds of documents showing what we would describe as catastrophic failures of the devices. At first we just wanted to make the public aware that the IRP scheme is a ship that doesn’t float. The readings are not reliable for various reasons, including device reliability.

With all of these records we wondered whether we could link any one IRP to devices with a malfunction. There was one client, a regular follower of our blog, and for interests sake he sent us his disclosure and we checked it against Vancouver Police Department ASD records. To our surprise, both of the devices to which he provided samples we’re found to be well outside of normal operating and functional parameters at their next calibration test.

This fellow was an innocent man. He disputed his IRP with a smart lawyer from another law firm and he lost at the OSMV tribunal. Many months after he went through the entire IRP nightmare, including the interlock, responsible driver program etc, we had the evidence to prove his innocence.

And that was the end of it. We did nothing with it because, if you’re on the board of directors of several significant organizations, it’s more important to protect the organizations and your position than it is to prove your innocence.

This fellow was thinking of the greater good with respect to the organizations to which he was connected. If the Government was interested in the greater good, we wouldn’t have an IRP scheme. But you can read the previous 300 blog posts for more details on that.

Thinking about proving that people are innocent:

Obviously this got us thinking. We turned our mind to the significant amount of raw data that we collect as lawyers disputing IRPs. Sadly, only a small fraction of people dispute the IRPs that they’re issued, mainly because the consequences aren’t made clear until after it’s too late. Nevertheless, we defend a huge number of nice people and so we decided to invest in the creation of a database.

It didn’t take long until we had built a massive database. We’ve collected information on IRPs we successfully defended, IRPs we advised against fighting and cases we fought and lost. We selected certain particularly useful features. And soon we started to recognize significant issues.

The next step was to begin to compare the information we collected in our database with the information we obtained through Freedom of Information requests we made for ASD breathalyzer records.

Last week we struck gold.

In one week using our database we found 8 cases – 8 people who blew into breathalyzers that were soon after pulled out due to catastrophic malfunctions. These people were innocent. In 4 of the 8 case we succeeded at the hearing for reasons other than the device malfunction. In some of the hearings we knew the problem and told the tribunal but lost anyway. In one case the client didn’t dispute it because, although she was innocent, innocence is not a grounds for review on an IRP.

The value of our database:

In the old days (i.e. when fairness was the hallmark of our justice system and matters concerning serious punishment were dealt with in court with actual disclosure) it was not up to you to prove you’re innocent. It was up to the Government to prove that you’re guilty. And to assist you in proving your innocence, the Government was required to provide disclosure allowing you to make full answer and defence to the allegations.

With the IRP scheme the Government maintains that it’s up to you to prove you’re innocent and they will only give you the evidence that they want you to have.

Through the back door we are still doing everything we can think of to make full answer and defence for our clients by seeking out disclosure to prove when our clients are innocent.

We don’t give up. For our clients whose old files we pulled out once again and determined that they are innocent, we’re preparing to go to battle. In the case of the first 4 people who we know blew into malfunctioning ASDs, we’ve already got things underway.

 


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